The Use of Foreign Sources in the Supreme Court's Cruel and Unusual Punishment Jurisprudence

Citing international sources is a Court tradition

The driving force behind the newborn trend of resistance: countermajoritarian difficulty, a fundamentally flawed theory

Difficulty in distinguishing usable sources: the Court needs to address it in its use of foreign sources

Cruel and Usual Punishment: Transcendental Nonsense and the Functional Approach at the Same Time

I. The current cruel and unusual punishment jurisprudence of the Supreme Court: Roper

Not a good citation form. It does not uniquely identify a case.

A. Transcendental nonsense adopted by the Court

Not a good form of reference either. "Since 1958" would work if all that matters is the year, but if "a case" is needed, as it is here, then "Trop v. Dulles (1958)" takes but one additional word.

This is non-sequitur. The Court can perceive that banishment, or executing children, are no longer actions tolerable under the society's prevailing standards of decency without having previously ruled that the actions are unconstitutional, just as the Convention Parliament could perceive that James II's use of whipping and aggression against habeas corpus went too far.

Also inadequate.

the case overruled by Roper, another transcendental nonsense was put forward to explain the previous one: “national consensus,” which meant the execution could be abolished only when there was a national consensus that it should no longer exist. If there had been any national consensus, how could this have been hotly debated by the opponents and proponents? This requirement is a convenient tool for the conservatives to uphold the constitutionality of a punishment. However, when a decision tries to keep the national consensus requirement and abolish an existing punishment at the same time, problems will follow.

B. The Court is, in fact, a realistic Court under the cover of transcendental nonsense

In Roper, the majority claimed there had been a national consensus that executing a juvenile was cruel and unusual. Therefore, in citing the international trend toward the same direction, the court was only looking for “confirmation for our own conclusions.” However, there was no such consensus at all: only thirty states had abolished such execution before the Roper decision was made. A sixty percent majority was hardly a “consensus.” It was abolished by the Court not because of a national consensus, but because the instability and the emotional imbalance of young people might often be a factor in the crime, as scientific and sociological research showed. And this opinion was supported by the overwhelming weight of international sources.

No. It was abolished because a majority of Justices abhorred the practice. Your realism is unrealistic.

II. Foreign sources as a functional approach in Constitution interpretation

This is really a fundamentally different topic. Combining the two makes more trouble for you than it sheds light.

A. The use of foreign sources should be justified

Law is what it does. Therefore, courts are justified in considering what the laws they are making will do. In Cohen’s words, “Only by… projecting beyond the decision the lines of its force upon the future, do we come to an understanding of the meaning of the decision itself.” Scientific and sociological research provides courts with a good source in predicting the effect of the newly-made law. However, the research is only prediction; for empirical evidence, courts must look at other countries where a similar scheme has been in practice for a while. The experiences of other countries can help courts better understand the possible outcome that their judgments will bring about. In this sense, the use of foreign sources is highly justified.

That's a specious but meretricious argument. "Similar" experience in other places could hardly be used to displace legislation, after all. So the question is not about how to make good policy, but about the nature and extent of judicial power. The arguments made against citing foreign sources in US Constitutional cases are also meretricious, and you can confront them successfully if you try, perhaps by learning some history of the controversy over the use of English cases in the early national US courts. But confronting the arguments means not trying to hit the ball where they ain't.

B. So, are the dissenters out of their minds?

All my reasoning above is based on the assumption that the functional approach, a product of the so-called legal realism, is the correct one. However, this assumption does not hold true to everyone. As Justice Scalia said in his Roper dissent, “this is no way to run a legal system.” According to the legal philosophy which he purports to follow, such a law does not change and these particular words ("cruel and unusual") have a fixed meaning. Therefore, the functional approach is no justification for the use of foreign sources.

Too many steps skipped. Two questions arise, after all, which would be answered separately if a foreign case (perhaps an English case from 1695, for example?) shed light on the fixed meaning of "cruel and unusual punishment" in the Bill of Rights of 1689.

C. Transcendental nonsense from a strategic perspective

If there had been five Scalias on the bench, executing juveniles would have still been constitutional.

But that's not the result of a dispute about the meaning of the Eighth Amendment. That's because Nino doesn't regard executing children as an abhorrent practice. (The Catholic Church has always found ways to remain unconcerned about the practice.) That was clear from his first Term on the Court.

There were not, so the liberals got what they wanted. However, they got it at a cost: the Roper decision was a mixture of the functional approach and some transcendental nonsense like “the evolving standards of decency that mark the progress of a maturing society.” The two ideas are incompatible,

Certainly not.

and the combination causes confusion and ambiguity, just as Blackstone did in throwing Hobbs and Coke together.

I think you mean Hobbes. This aside causes you way more trouble than it's worth, because you haven't got a prayer of reducing Blackstone to the sum of Hobbes and Coke, and all you do is make apparent that you haven't any significant first-hand experience of either Blackstone or Coke.

But we have to be practical here: the majority needed five votes. If they had given up the transcendental nonsense, they would not have got five votes. To get the important fifth vote, the price that had to be paid was to let him (the Roper majority was written by Justice Kennedy) include the transcendental nonsense in the opinion.

This assumes that the other judges in the majority don't believe that the Eighth Amendment's words require a contemporary assessment of what constitutes "cruelty" or "unusualness." On the basis of my limited experience of those human beings I think you're wrong in that assumption as to at least three. So what's your evidence for this proposition?

From a purely scholastic point of view, this is a bad approach, and it makes the decision seem fragile in the face of dissenters’ criticism: if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. On the other hand, this is a smart approach in practice. The law is what it does, not how it does. As a Chinese leader said, “I don’t care if it’s a white cat or a black cat; as long as it can catch mice it’s a good cat.”

Quoting Deng Xiaoping casually in a discussion of capital punishment has a rather sinister wit about it. I would ask whether it is a good idea.

As I said above, I think the attempt to discuss two quite distinct issues in the space available acted to the detriment of the essay as to both. You need to choose which, I think, you want to write about.

So far as the Eighth Amendment jurisprudence is concerned, you need to be careful to explain your ideas not in Cohen's rhetoric, but in your own. His leads you astray, because you wind up treating any "living constitution" position as "transcendental nonsense," which is a contentious conclusion you do not establish. For me, as a historian, "original intention" is transcendental nonsense, and anything that relates contemporary constitutional decisions to contemporary political phenomena, including even the presence or absence of current political consensus, is—if not entire realism—a step in the correct direction. I may be wrong as any reader can be wrong, but you must show me why I am wrong, not try to assert your way past me.